Stewart v Police
[2019] NZHC 2086
•23 August 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-433
[2019] NZHC 2086
BETWEEN MELVIN DOUGLAS STEWART
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 July 2019 Appearances:
A Speed for the Appellant
D Wiseman for the Respondent
Judgment:
23 August 2019
JUDGMENT OF DUFFY J
This judgment was delivered by me on 23 August 2019 at 3.30 pm.
Registrar/ Deputy Registrar
Solicitors/Counsel:
Andrew Speed, Barrister, Auckland Meredith Connell, Auckland
STEWART v NEW ZEALAND POLICE [2019] NZHC 2086 [23 August 2019]
[1] On 10 June 2019 I delivered an interim judgment in this appeal, which partly determined the procedural basis on which Mr Stuart brings this appeal.1 This judgment should be read together with that judgment.
[2] In the interim judgment I found that the decision of Judge Taumaunu, which is the subject of this appeal, was not made pursuant to s 147 of the Criminal Procedure Act 2011 (CPA), and for this reason I rejected the respondent’s argument the decision could not be the subject of a pre-trial appeal.
[3] I considered the decision under challenge was the determination of an application by Mr Stewart for the exercise of the District Court’s inherent power to control its process, the complaint being that the amended charge was a nullity or an abuse of process. Whether there could be a substituted charge in this circumstance appeared to me to raise a question of law relating to the determination of the charge. As such it was properly appealable under s 296 of the CPA.2 However, because the respondent had not addressed this issue rather than deal with it in the interim judgment I left the matter open for the parties to address at the resumed hearing. When the appeal resumed before me the parties were agreed the decision was properly the subject of appeal under s 296 of the CPA. This disposed of the concerns regarding jurisdiction.
[4] Accordingly, I now deal with the substantive argument raised by Mr Stewart, which raises the legal question of whether a charge that is now time-barred, and therefore unable to be laid against Mr Stewart at first instance can nevertheless be substituted for the earlier charge he faced.
Alleged facts
[5] At about 12:20 pm on 31 December 2016, Mr Stewart was stopped at the traffic light at the intersection between Victoria Street East and Queen Street in Auckland Central. The victim was in front of him, also in his vehicle.
1 Stewart v Police [2019] NZHC 1294.
2 See s 296 (3)(a) of the Criminal Procedure Act 2011; in Linfox Logistics (NZ) Ltd v Worksafe New Zealand [2018] NZHC 583 Woolford J found that a right of appeal exists under s 296(3)(a) from a decision pre-trial to permit the amendment of a charge.
[6] When the light went green, the victim did not move forward as anticipated. Mr Stewart honked his horn at the victim, who proceeded slowly through the intersection. Mr Stewart followed him through the intersection. As he was doing so, he nudged the victim’s vehicle. The victim stopped his car in the intersection, got out and walked towards Mr Stewart.
[7] Mr Stewart did not stop, and slowly hit the victim, pushing him backwards on the bonnet of his vehicle. A bystander intervened, opening Mr Stewart’s door. Mr Stewart drove off, making no attempt to check on the victim. The victim received reddening of the forearms and a strained muscle.
Legal framework
[8]The original charge was under Section 196 Crimes Act 1961:
196 Common assault
Every one is liable to imprisonment for a term not exceeding 1 year who assaults any other person
assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose; and to assault has a corresponding meaning
[9]The substituted charge was under Section 35(1)(b) Land Transport Act 1998:
35Contravention of section 7, or section 22 where no injury or death involved
(1)A person commits an offence if the person-
(a) operates a motor vehicle recklessly on a road; or
(b) drives or causes a motor vehicle to be driven on a road at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person; or
(c) without reasonable excuse, contravenes section 22 by failing to stop and ascertain whether any person has been injured, after an accident where no other person has been injured or killed.
(2)If a person is convicted of an offence against subsection (1), -
(a) the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
(b) the court must order the person to be disqualified from holding or obtaining a driver license for 6 months or more
(3)The imposition of a mandatory disqualification under this section is subject to section 81.
…
[10] The appellant’s appeal arises because of Section 25 of the Criminal Procedure Act 2011, which provides:
25 Time for filing charging document
…
(3) A charging document in respect of a category 1 or 2 offence must be filed-
(a) Within 6 months after the date on which the offence was committed if an enactment specifies that the penalty for the offence-
(i) includes a term of imprisonment not exceeding 3 months; or
(ii) does not include a term of imprisonment, but includes a fine not exceeding $7,500; or
(b) within 12 months after the date on or which the offence was committed if an enactment specifies that the penalty for the offence-
(i) includes a term of imprisonment greater than 3 months but not exceeding 6 months; or
(ii) does not include a term of imprisonment, but includes a fine greater than $7,500 but not exceeding $20,000
(c) within 5 years after the date on which the offence was committed in any other case, unless the prior consent of the Solicitor-General is obtained to file a charging document after that date.
[11] The alleged offending was on 31 December 2016. The original charge of common assault was laid on 30 June 2017. On 23 May 2018 the charge was amended to dangerous driving. The substituted charge, dangerous driving, was therefore substituted outside of the time when it could originally have been laid.
[12] The Crown relies on s 133(1) of the Criminal Procedure Act 2011, which provides:
(1) A charge (including any of the particulars required to be specified in a charging document under section 16(2)) may be amended by the court at any stage in a proceeding before the delivery of the verdict or a decision of the court.
[13] The Crown also relies on the remarks of Courtney J in McQuillan v Police.3 In that case, Courtney J remarked on the appropriateness of amending a charging document for the offence of driving with an excess blood alcohol level from the erroneously recorded 650 milligrams of alcohol to 225 milligrams of alcohol. Courtney J remarked:
[11] Section 133 of the CPA confers a broad power on the Court to amend a charge at any time before the verdict (in a jury trial) or a decision (in the case of a Judge-alone trial). Section 133 does not require that an amendment be made within the six-month period that applies to the original charging document under s 25.
[12] The power to amend the charging document reflects the policy that, unless it would cause prejudice to the defendant, a variance between the charge and the evidence should not result in an acquittal where there is evidence of an offence. In this case, where the amendment merely reduced the level of the blood alcohol alleged but did not alter the substance of the charge itself, there could be no objection to it.
[14] Sections 134 and 135 create procedural protections for when a charge is substituted before trial. Mr Stewart submits that those references suggest amendment is only possible where the charge is being amended to a more serious one. I reject this submission. Sections 134 and 135 go no further than to ensure the defendant would have the same procedural safeguards and rights of election that he or she would have had if the substituted charge had been laid originally. Those provisions do not mandate for the substituted charge to be more serious than the original charge.
[15] This Court itself has amended a charge to a less serious one using s 133 in the past.4 I am satisfied, therefore, that s 133 permits amendment of a charge to a less serious one. Whether it permits amendment to an otherwise time-barred charge is another matter.
[16] The power to amend a charge is broad. Before the passage of the 2011 Criminal Procedure Act, the Court of Appeal considered the legality of substituting an
3 McQuillan v Police [2018] NZHC 1247.
4 R v Lewis [2014] NZHC 2331.
otherwise limitation-barred charge in R v Holt (procedurally an appeal against conviction).5 In that case, the original charge had been filed in November 2003. The charge alleged that the defendant, an undischarged bankrupt, had illegally worked for a family member. The prosecution subsequently discovered it was impossible to prove the charge, as the relationship between the defendant and the director was not a qualifying one. On 20 August 2004 the District Court Judge permitted amendment of the charge to one of taking part in the management of a business.
[17] Amendment of the charge was done under Section 43 of the Summary Proceedings Act 1957, which provided relevantly:
43 Amendment of information where defendant appears
(1) Subject to the succeeding provisions of this section, where the defendant appears to answer a charge to which this Part of this Act applies, the Court may amend the information in any way at any time during the hearing.
(2) … [the] powers shall include power to amend an information by substituting one offence (whether an indictable offence or a summary offence) for another offence (whether an indictable offence or a summary offence)
[18]In Holt, the Court of Appeal remarked:6
[23] There is no doubt that an amendment falling short of the substitution of a new charge may relevantly be made outside the limitation period. So, for example, in Morrison v Curtis [1954] NZLR 159, an amendment to an information charging a seaman with desertion of his ship was held not to have charged a new offence by reason of the amendment of the name of the ship
…
[49] … Prosecuting authorities in are expected to comply with limitation periods but circumstances may arise after expiration of a limitation period which dictate the need for an amendment.
[19] On when it is appropriate, the Court endorsed the a contextual inquiry, the approach taken in R v Scunthorpe Justices, Ex Parte McPhee & Gallagher:7
5 R v Holt [2006] NZCA 105, [2006] DCR 669.
6 At [49].
7 R v Scunthorpe Justices, Ex Parte McPhee & Gallagher (1998) 162 JP 635. Endorsed in R v Holt, above n 5, at [39].
[39] …
Once they are satisfied that the amended offence or offences arise out of the same or substantially the same facts as the original offence, the justices must go on to consider whether it is in the interests of justice to allow the amendment. In exercising their discretion the justices should pay particular regard to the interests of the defendant. If an amendment will result in a defendant facing a significantly more serious charge, that should weigh heavily – perhaps conclusively – against allowing the amendment after the six-month time limit has expired.
[20]The Court of Appeal further remarked on when amendment is appropriate:8
[47] … Relevant factors taken into account were the “frankly lamentable” failure of the appellant authority to prosecute the right offence from the outset and the failure to review the file and to seek an amendment at an earlier stage.
[48] There were further telling considerations. The amendment went well beyond the simple curing of a technical defect. It involved a different offence with a new statutory defence not available under the offence originally charged, albeit relating to the same alleged misdoing.
…
[50] As in R v Newcastle Upon Tyne Magistrates’ Court, Ex Parte Poundstretcher Ltd the Court must bear in mind the need to balance on the one hand the public interest in the effective investigation and prosecution of offences, and on the other, the public interest in ensuring that prosecuting authorities commence proceedings within the period prescribed by statute and in safeguarding a defendant against continuing uncertainty in the course of a prosecution. The fact that a proposed amendment may involve the introduction of new of different legal elements into a prosecution will not necessarily preclude the grant of an amendment. While that will be an important factor in the overall inquiry, it will not be determinative. The outcome of an application for amendment will depend on a balance of the various factors in a given case.
…
[54] The original and amended charge each relate to broadly the same factual matrix so that “the transaction”, to use a term utilised in certain New Zealand authorities, was the same in each case. The amendment cannot be said to be of such character as to amount to a circumvention of the limitation period as prescribed by s 128A(2). We are satisfied that it was in the interests of justice to grant leave to amend in this case.
[21] I consider the same analysis is applicable under the CPA. Section 133 of the CPA now provides:
8 R v Holt, above n 5.
Amendment of charge
(1) A charge (including any of the particulars required to be specified in a charging document under section 16(2)) may be amended by the court at any stage in a proceeding before the delivery of the verdict or a decision of the court.
(2) The amendment may be made on the court’s own motion or on the application of the prosecutor of the defendant
(3) A Registrar may, in respect of any offence other than a category 4 offence, exercise the power under subsection (1) if the prosecutor and the defendant consent to the amendment
[22] The legislative history of the CPA suggests that no change in the discretion to allow the amendment of a charge was intended by the passage of the Act. It states that:9
Sections 43 and 43A of the Summary Proceedings Act 1957 and section 335 of the Crimes Act 1961 have been modernised and integrated, with some modifications, into a single set of provisions applicable to all categories of offence.
Clause 135 [which would become Section 133] confers a general power on the court to amend a charge at any stage in a proceeding before the delivery of the verdict or decision of the court. It is subject to clause 138 [which deals with amendment during trial].
[23] The Clause went through no substantial changes during the legislative process. As the original section made no specific mention of the ability to substitute for an otherwise time-barred charge, I am satisfied that no reform to the ability of the Court to substitute a time-barred charge was intended by the passage of the CPA. Whether and when such a substitution is appropriate is another matter.
[24] Here both charges generally arise out of the same factual circumstances: namely the forcible touching of the victim by the vehicle driven by Mr Stewart. Thus, evidence to prove the forcible touching of the victim by the vehicle and who the driver was would be evidence relevant to the charge of common assault and would be relevant to the charge of dangerous driving.
[25] However, the required elements of the offending mean that there are essential differences between the original charge and the amended charge. A charge of common
9 Criminal Procedure (Reform and Modernisation) Bill 243-1.
assault requires the Crown prove beyond reasonable doubt that Mr Stewart intentionally applied force to his victim. The charge of dangerous driving requires the Crown to prove that he has, in the case of s 35 (1)(a) operated a motor vehicle recklessly, in the case of (b) driven a motor vehicle at a speed or in a manner which might be dangerous, or in the case of (c) that he has failed to stop to ascertain whether a person has been hurt without reasonable excuse. The relevant offence here appears to be under s 35(1)(a).
[26] Accordingly, the amended charge is much broader than the original charge. The original charge read:
On the 31st day of December 2016 Assaulted Luke Heather
[27]The amended charge reads:
On the 31st day of December 2016
…
You drove a motor vehicle JFC544 on a road namely the corner of Queen Street and Victoria Street East in a manner which having regard to all the circumstances of the case was or might have been dangerous to a person
[28] This is not a case like Holt, where the offending arose out of the same transaction: namely, conducting work for a specific company. The facts giving rise to the new offending here do not arise out of the same transaction. The amended charge is much broader. Whilst it may focus on the alleged application of force to the victim, the amended charge can also encompass the act of driving through an intersection in a dangerous manner, which is not necessarily dependent upon proof that the driving resulted in a forcible touching of the victim. In short, the substituted charge will not be limited to simply the application of force.
[29] There are obvious and essential differences between the charges. Reckless driving focuses on the manner the defendant’s driving. It has three elements:10
10 Roger Thornton (ed) Law of Transportation (online ed, Westlaw) at [LT7.03].
(a)the driver fell below the standard of care expected of a reasonable and competent driver;
(b)the resulting situation was objectively dangerous; and
(c)the driver was aware of the potential danger and continued to act despite knowledge of the possible consequences
[30] The nature of these elements means that the focus of the offending, and potential defences, will be different from what would have been the case with a charge of common assault. Indeed, the substituted charge is broad enough to permit the prosecution to focus more generally on how Mr Stewart drove his vehicle at the relevant time and place. At trial there would be nothing to prevent the focus of the prosecution from shifting from Mr Stewart’s alleged interaction with the victim of the alleged assault to other aspects of Mr Stewart’s driving on this occasion. Any aspect of his driving on this occasion that could be said to be dangerous could then become the focus of attention, despite it otherwise now being time-barred from prosecution. Thus, the substitution has altered the very substance of the charge he now faces, which is prejudicial to Mr Stewart. This is different from the circumstances in McQuilliam v Police and in R v Holt where the substitution did not alter the substantial character of the charge.
[31] I consider the present case is more analogous to that in Cunningham v Police.11 In that proceeding the appellant had originally been charged under s 229A(b) of the Crimes Act 1961 with using or attempting to use a document for the purpose of obtaining a pecuniary advantage. It was a case of an alleged fraud on the Social Welfare Department. There is no time limit on laying those charges.
[32] When they were heard in the District Court, the Judge concluded that an essential element of the charge, deceit, was not made out. The Judge then concluded that the evidence before him disclosed offences under s 127 of the Social Security Act which related to making statements to the Department of Social Welfare knowing them to be false in a material particular for the purpose of receiving a benefit under the Act.
11 Cunningham v Police HC Tauranga AP 36/93, 15 September 1993.
The Judge amended the Informations so that they became charges under s 127 and then convicted Mr Cunningham. Accordingly, at the date the Judge substituted offences under s 127 of the Social Security Act for the offence under the Crimes Act, the Social Security Act charges the limitation period had long expired. On appeal to the High Court Blanchard J held that the Judge had no jurisdiction to substitute entirely new offences in those circumstances and that the convictions must be quashed. Blanchard J noted that, whilst the transactions in respect of the amended Informations laid were undoubtedly the same transactions, nonetheless:12
But that is only one part of the equation. But is equally clear that the same offence is still not being charged. The point of the amendment made by the learned District Court Judge was to substitute different (albeit lesser) offences the ingredients of which are different.
[33]Later, Blanchard J concluded his judgment in this way:13
The crucial fact is that an entirely new offence was being charged by virtue of the amendment in that this new offence, under s 128, could not have been the subject of a new Information at that time. It was not merely a case of tidying up by amendment a detail relating to an earlier Information concerning the same offence. Nor does it seem to me to be of any significance that the new charges were of a lesser offence. Parliament has seen fit to enact a time limit. The new charges are under s 128 and s 43 cannot be used where the time limit in s 129 would thereby be circumvented.
[34] In R v Holt the Court of Appeal described Cunningham as an illustration of the principle that the Court will not permit the amendment procedure to circumvent unfairly the operation of limitation clauses in the criminal jurisdiction.14 This is what would occur here if the substitution were permitted. Whilst the circumvention may not be deliberate the short point is that if the substation is made Mr Stewart would fine himself facing a prosecution for a new offence with a more widespread scope than the original charge in circumstances where the charge for this new offence could not be the subject of a new charge notice against him.
[35] However, charges for offences under s 127 of the Social Security Act were subject to a limitation period of 12 months.15
12 R v Cunningham, above n 11, at 7.
13 At 9.
14 R v Holt, above n 5, at [31].
15 Social Security Act 1964, s 128(1).
[36] Accordingly, I am satisfied that this is a case where the interests of justice did not support allowing the amendment of the original charge. It follows that the District Court Judge has erred in the exercise of his discretion through failure to apply the correct legal principles.
[37] Here the amendment of the charge to dangerous driving carries limitation consequences which render this charge a nullity. It cannot be brought by way of amendment for the reasons I have outlined, and it cannot be freshly laid because it is out of time. Accordingly, the prosecution on the charge of dangerous driving cannot proceed further as that charge is a nullity. Whether there are other potential charges that might properly be laid against him for the conduct in issue is a separate matter for the Police to address.
Result
[38] The appeal is allowed. The prosecution is stayed on the ground the dangerous driving charge cannot be brought against Mr Stewart.
Duffy J
3
0